Warrenv.State

New York State Court of ClaimsMar 24, 2014
# 2014-048-133 (N.Y. Ct. Cl. Mar. 24, 2014)

# 2014-048-133 122863 Motion No. M-83929 Motion No. M-84189

03-24-2014

WARREN v. THE STATE OF NEW YORK

GREGORY WARREN, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney


Synopsis

The Court granted Defendant's motion to dismiss the Claim based on Claimant's failure comply with the service requirements of Court of Claims Act § 11 (a) (i), and also denied Claimant's motion seeking permission to late file a claim seeking damages for, among other things, personal injuries sustained while Claimant was confined at the Walsh Regional Medical Unit in the Mohawk Correctional Facility.

Case information

Defendant(s):

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Judge:

Signature date:

City:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:

2014-048-133

Claimant(s):

WARREN, G.

Claimant short name:

WARREN

Footnote (claimant name) :

THE STATE OF NEW YORK

Footnote (defendant name) :

NONE, 122863

Motion number(s):

M-83929, M-84189

Cross-motion number(s):

GLEN T. BRUENING

Claimant's attorney:

GREGORY WARREN, Pro Se

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney

Third-party defendant's attorney:

Albany

Comments:

Decision


On June 18, 2013, Claimant G. Warren filed a Claim seeking damages alleging a host of intentional and unintentional torts committed by approximately 45 individuals, who include a number of correction officers, doctors, nurses and other state employees, while Claimant was confined at the Walsh Regional Medical Unit (Walsh) in the Mohawk Correctional Facility in Rome, New York, under the supervision of the Department of Correctional Services ("DOCS"). Claimant alleges that he is an individual with disabilities who is non-ambulatory and requires, among other things, assistance bathing and dressing. The Claim consists of 249 handwritten paragraphs, some of which are difficult to read, is separated out into six causes of action, and seeks damages for abusive, degrading, inhumane, grossly oppressive, extreme, outrageous and atrocious treatment; cruel and unusual punishment; deliberate indifference; gross negligence, aggravated harassment, malpractice, Falsifying medical records; Freedom of Speech, Right to Petition Govt., Due Process, human Rights, Patients Bill of Rights, Americans with Disabilities Act, Rehabilitation Act, N.Y. Code Rule & Regs. Tit. 9. § 706 (7) (B), Equal Protection and criminal law violations (Claim, ¶2). The acts complained of are alleged to have commenced at Walsh on January 2, 2003 and continued until his release from DOCS custody on May 10, 2012.

. DOCS is now known as the Department of Corrections and Community Supervision ("DOCCS") (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred both prior to and after the name change, this Decision will refer to the Executive Agency by its former name.

. The second cause of action alleges that Claimant arrived at Walsh on March 18, 2002 (see Claim, page 21, ¶ 136).

With respect to the first cause of action, the majority of the allegations center around the institution of, compliance with, and challenges to a comprehensive care plan, identified by Claimant as a "D-plan" (Plan) (Claim, page 5). Specifically, Claimant alleges that, as a result of his allegations that staff were not tending to his needs, in July 2003, the Plan was developed. However, Claimant asserts that the Plan did not provide him with sufficient time to complete certain basic self-care tasks, including bathing, showering, bowel and bladder management, among other tasks or, conversely, that he was left too long in the shower. Claimant also alleges that he was not provided with the necessary resources, including clean water to complete self-care tasks, that state employees refused to aid in cleaning him and applying lotion, and that he was not timely provided with his breakfast.

Claimant's second cause of action seeks damages for injuries sustained based on Defendant's act in serving Claimant certain foods to which he had documented allergies (seeClaim, pages 21-29). As a result of consuming this food throughout his confinement to Walsh, Claimant alleges that he continued to suffer from numerous dermatological and other physical reactions. Claimant's third cause of action asserts medical negligence and/or malpractice in failing to apply lotion to Claimant's lower extremities in 2005 and 2006 as per the requirements of the Plan (see Claim, pages 29-30). Claimant's fourth cause of action asserts medical negligence and/or malpractice in failing to adequately diagnose and treat him for an illness he contracted in January 2008, and in failing to adequately diagnose and treat him in 2011 for left arm atrophy symptoms and a lump on his neck (see Claim, pages 30-32). The fifth cause of action consists of one paragraph, references discrimination and, without more, alleges that general population inmates are afforded a host of privileges (see Claim, page 32). The sixth cause of action alleges discrimination and violations of Claimant's rights based upon state employees' refusal to process his mail as legal mail between August and October 2011 and until he was discharged from DOCS custody (see Claim, pages 33-36).

Apparently, in response to the affirmative defense of timeliness interposed by Defendant in its Answer, Claimant moves, by motion served August 23, 2013, for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes Claimant's motion and also moves for an order dismissing the Claim pursuant to CPLR 3211 (a) (2) and (8) based on Claimant's failure to comply with the service requirements set forth in Court of Claims Act § 11. Specifically, Defendant asserts that neither the Notice of Intention to File a Claim nor the Claim was served on the Attorney General's Office by either personal service or by certified mail, return receipt requested, thus divesting the Court of personal jurisdiction over Defendant and subject matter jurisdiction over the Claim. Defendant's potentially dispositive motion will be considered first.

. Service of a motion for leave to file a late claim against the State is complete upon mailing (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58, 61 [2d Dept 2001]). The "Affirmation of Service" of Claimant's motion states that it was mailed on August 23, 2013.

. On November 22, 2013, Claimant sent to Chambers via facsimile two sets of documents - the first consisting of 24 pages and the second consisting of 46 pages. A Notice of Motion was included with the 24-page submission. However, those documents appeared to be submitted in opposition to Defendant's Motion No. M-84189 and in further support of Claimant's motion. A Notice of Motion was also included with the 46-page document. By this latter set of documents, it appeared that Claimant was intending to, among other things, file a new motion seeking to amend Claim 122863. By correspondence dated November 27, 2013, Claimant was advised that he must file his papers with the Clerk of the Court, either by mail or by facsimile at (866) 413-1069. By correspondence dated February 10, 2014, Chambers reminded Claimant that the documents received via facsimile on November 22 must be filed with the Clerk of the Court, and advised that if those documents are not filed with the Clerk's office, the Court will deem Motion Nos. M-83929 and M-84189 fully submitted. No further motions or submissions have been filed with the Clerk of the Court.

Whether characterized as a Claim for an intentional tort or an unintentional tort, Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in section 10 of the Court of Claims Act.

Court of Claims Act § 10 (3) mandates that [a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

. Constitutional tort causes of action are characterized as claims for unintentional torts (see Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]).

Court of Claims Act § 10 (3-b) mandates that [a] claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Failure to comply with these statutory filing and service requirements "deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). However, any objection or defense based on a Claimant's failure to comply with the time limitations or the manner of service requirements is waived unless specifically raised in the answer or in a pre-answer dismissal motion (see Court of Claims Act § 11 [c] [i], [ii]). Along these lines, alternative mailings, such as express mail or priority mail, do not comply with the statutory requirements and divests the court of subject matter jurisdiction over the Claim (see Hodge v State of New York, 213 AD2d 766, 767 [3d Dept 1995]; see also Miranda v State of New York, 113 AD3d 943, 943 [3d Dept 2014]).

Here, the record before the Court reveals that a Notice of Intention was served on the Attorney General on August 8, 2012 by express mail (see Affirmation of Thomas Trace, Esq., sworn to on October 22, 2013, ¶ 3, Exhibit B). The Claim was also served on the Attorney General via express mail on May 10, 2013 (see Claimant's Motion for Permission to File a Late Claim, Exhibit 1; Affirmation of Thomas Trace, Esq., sworn to on October 22, 2013, ¶ 3, Exhibit D). An Answer to the Claim was filed on June 12, 2013, in which Defendant asserts the affirmative defense of lack of jurisdiction on the grounds that both the Notice of Claim and Claim were served by express mail (see Answer, ¶ 7).

Initially, the Court determines that Defendant preserved its objection to the manner of service of the Claim in its Answer. Turning to the merits of Defendant's motion, inasmuch as Claimant has conceded that the Claim was served via express mail (see Claimant's Motion for Permission to File a Late Claim, ¶ 3, Exhibit 1), the Court concludes that Claimant served his Claim on the Attorney General by express mail, and thereby failed to comply with Court of Claims Act § 11 (a) (i). This deprived the Court of subject matter jurisdiction (see Miranda v State of New York, 113 AD3d at 943). Accordingly, Defendant's Motion No. M-84189 is granted and the Claim is dismissed.

In next addressing Claimant's Motion No. M-83929, if a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in Article 2 of the CPLR has not expired (see Court of Claims Act §10 [6]).To the extent that the proposed Claim is read to assert causes of action for the intentional torts of assault, excessive use of force, and defamation - all are subject to a one-year statute of limitations (see CPLR § 215 [3]). The proposed Claim also asserts causes of action for medical malpractice and negligence, which are subject to two year and six months, and three-year statutes of limitations, respectively (see CPLR 214-a; CPLR 214 [5]). Claims alleging constitutional torts and violations of both the Americans with Disabilities Act (ADA) and Rehabilitation Act are governed by the three-year statute of limitations applicable to New York personal injury actions (see Brown v State of New York, 250 AD2d at 318-319; Stamm v New York City Transit Authority, 2013 WL 244793, 8 [ED NY, Jan. 22, 2013]).

. While a proposed Claim was not submitted with Claimant's motion, the Court will consider Claim No. 122863 as the proposed Claim for purposes of Claimant's motion for late Claim relief and, with respect to Claimant's motion, will refer to that document as a proposed Claim.

The thrust of the first cause of action is a challenge to DOCS implementation of and/or compliance with the Plan formulated for Claimant. While seemingly a challenge to an agency determination, the implications of which will be discussed below, in liberally construing the proposed Claim, to the extent that the first cause of action can be read to assert claims for intentional torts, Claimant's most recent allegation of an intentional tort accrued on May 10, 2012, that last date on which he was in DOCS custody and could have been subjected to the Plan's requirements. Thus, the statute of limitations for the most recent intentional tort expired on May 10, 2013, and the Court lacks the discretion to grant late Claim relief for Claimant's allegations of intentional torts. To the extent that the first cause of action can be read to assert causes of action for negligence, constitutional torts and violations of the ADA and Rehabilitation Act, Claimant's most recent allegation of such a tort also accrued on May 10, 2012, that last date on which he was in DOCS custody and could have been subjected to the Plan's requirements (see Claim, page 20). Thus, insofar as the first cause of action alleges negligence, constitutional torts and violations of the ADA and Rehabilitation Act, Claimant's application for late claim relief is timely only insofar as the Claim seeks damages for injuries sustained from August 23, 2010 until his release from DOCS custody on May 10, 2012.

. Rather than a continuing violation (see Claimant's "Affidavit in Support of Motion for Permission to File a Late and Amended Claim," ¶ 2) as alleged in Claimant's opposition to Defendant's motion, the first cause of action alleges discrete instances of unlawful conduct - i.e. the implementation of, challenge to, and compliance with the Plan - that continued to impact Claimant (see e.g. Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]).

Likewise, that part of Claimant's second cause of action - seeking damages for feeding Claimant food to which he had documented allergies - indicates medical negligence (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]; Abascal v State of New York, 93 AD3d 1216, 1217 [4th Dept 2012], lv denied 19 NY3d 805 [2012]), and those acts occurring prior to August 23, 2010 are time barred (see CPLR 214 [5]). However, that part of Claimant's second cause of action, alleging medical negligence for those injuries sustained as a result of his consuming such food from August 23, 2010 until his release from DOCS custody on May 10, 2012, are timely.

Turning to the third cause of action seeking damages for Defendant's failure to apply lotion to Claimant's lower extremities in 2005 and 2006 - whether couched in terms of medical malpractice or medical negligence, Claimant's application is untimely, and the Court lacks the discretion to grant late Claim relief with respect to those claims (see CPLR 214-a; CPLR 214 [5]). Likewise, to the extent that Claimant's fourth cause of action seeks damages for medical negligence or malpractice in failing to adequately diagnose and treat him for an illness he contracted in January 2008, that part of the proposed Claim is untimely. However, insofar as the fourth cause of action seeks damages based on Defendant's failure to adequately diagnose and treat him in August 2011 for left arm atrophy symptoms and a lump on his neck, such claims sound in medical malpractice as they are related to diagnosis and treatment (see Abascal v State of New York, 93 AD3d at 1217), and are subject to a two-year and six month statute of limitations. Thus, Claimant's application for late claim relief for those medical malpractice claims arising in August 2011 are timely.

Claimant's fifth cause of action does not identify the particulars underlying the alleged discrimination, the identity of the individuals alleged to have been involved, or the date such acts are alleged to have occurred. Thus, the Court is unable to determine when the claims accrued for statute of limitations purposes, and is only able to conclude that the acts complained of occurred before Claimant was discharged from DOCS custody on May 10, 2012. Thus, the fifth cause of action is timely insofar as it alleges discrimination occurring after August 23, 2010. Finally, Claimant's sixth cause of action, alleging discrimination and other violations based on Defendant's refusal to process his mail as legal mail from August through October 2011 until his release from DOCS custody is governed by CPLR 214 (5), and is timely for late Claim purposes.

In sum, the Court has the discretion to grant late claim relief for the following claims:

1) the first cause of action, insofar as it alleges negligence, constitutional torts and violations of the ADA and Rehabilitation Act, for injuries sustained from August 23, 2010 until Claimant's release from DOCS custody on May 10, 2012;

2) the second cause of action, insofar as it alleges acts of medical negligence based on Claimant's consumption of certain foods occurring from August 23, 2010 until Claimant's release from DOCS custody on May 10, 2012;

3) the fourth cause of action, insofar as it alleges acts of medical malpractice in failing to diagnose and treat Claimant's left arm atrophy symptoms and a lump on his neck;

4) the fifth cause of action, insofar as it alleges discrimination occurring from August 23, 2010 until Claimant's release from DOCS custody on May 10, 2012; and

5) the sixth cause of action, alleging discrimination and violations of Claimant's rights based on Defendant's failure to process his mail as legal mail from August 2011 until Claimant's release from DOCS custody on May 10, 2012.

In addressing the substance of Claimant's motion, Court of Claims Act § 10 (6) requires that a motion for late claim relief be accompanied by "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act." Court of Claims Act § 11 (b) requires, in relevant part, that

[t]he claim [ ] state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed.

Section 11 (b) also requires that the same information be set forth in a Notice of Intention, excepting the items of damage or injuries. All of the requirements in section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and a claimant's failure to comply with those statutory provisions renders the Claim jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]).

Assuming that a proposed Claim containing all of the information set forth in the Court of Claims Act § 11 is submitted with the motion, the Court of Claims is vested with broad discretion to grant or deny a motion that seeks permission to file a late claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of, among others, six factors, including

whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy

(Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).

Prior to consideration of the six factors listed in the Court of Claims Act § 10 (6), in the interest of judicial economy, the Court will first determine whether the remaining claims are sufficiently specific to comply with the pleading requirements of section 11 (b), since those requirements implicate this Court's subject matter jurisdiction. The "guiding principle" of section 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d at 207 [internal quotation marks and citations omitted]). In reviewing the proposed Claim, the fifth cause of action fails to provide any identifying information regarding the acts alleged, the dates that the acts occurred, or individuals involved, thus rendering the fifth cause of action insufficient to satisfy the requirements of Court of Claims Act § 11 (b), as incorporated in section 10 (6) (see e.g. Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]). Accordingly, the Court does not reach the merits of the six statutory factors enumerated in Court of Claims Act § 10 (6) with respect to the fifth cause of action.

. The strict pleading requirements of Court of Claims Act § 11 (b) implicate the Court's subject matter jurisdiction, which cannot be cured by amendment (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]).

In addressing the remaining causes of action, with respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant asserts that it wasn't until receipt of Defendant's motion that he was made aware that the Claim, issued Claim Number 122863, was not sent certified mail. Claimant also asserts that he is bedridden and must rely on staff to send out correspondence. Defendant argues that Claimant has not provided an acceptable excuse for his delay in timely serving a Notice of Intention or a Claim. In noting that Claimant's statement regarding his incapacitation is not an acceptable explanation for this delay (see Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]), while not a bar to the application, this factor does not weigh in Claimant's favor.

With respect to the Section 10 (6) factors of notice of essential facts, opportunity to investigate, and substantial prejudice to the State, Claimant simply states that Defendant had notice of the essential facts constituting the claim. In response, while Defendant contends that the majority of the acts complained of occurred more than ten years ago, thus preventing Defendant from conducting an immediate and thorough investigation into the allegations, Defendant submitted only the affirmation of an attorney with no personal knowledge of the facts and failed to substantiate its allegations (see Matter of Powell v State of New York, 187 AD2d 848, 848-849 [3d Dept 1992]). Accordingly, the Court weighs these factors in Claimant's favor. Likewise, Claimant states that he has no other remedy available, and Defendant, while indicating that certain causes of action have no merit because they are more appropriately the subject of a CPLR Article 78 proceeding, does not dispute this. Accordingly, the Court weighs this factor in Claimant's favor.

While the final factor applicable to the motion - the appearance of merit - may arguably be the most crucial factor in Section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require a claimant to definitively establish the merits of the proposed claim. Rather, a claimant needs to establish that the proposed claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]).

With respect to both the first and sixth causes of action, Claimant has not addressed the appearance of merit in his motion. In any event, the essence of these claims are challenges to DOCS actions, policy or procedures, specifically, the implementation of and compliance with the Plan, and in failing to process Claimant's correspondence as legal mail. Accordingly, Claimant's remedy to redress the wrongs alleged in both the first and sixth causes of action, after first exhausting his administrative remedies, lies in Supreme Court in the form of an Article 78 proceeding challenging the denials of his administrative grievances (see CPLR 7803; Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]; see e.g. Matter of Raqiyb v Goord, 28 AD3d 892, 894 [3d Dept 2006]). To the extent that Claimant asserts State constitutional claims (see proposed Claim, page 36), such claims are barred where, as here, Claimant has an alternative legal remedy in the form of a CPLR Article 78 proceeding (see Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). To the extent Claimant alleges violations of his rights under the Federal Constitution (see proposed Claim, page 36), those claims are beyond the jurisdiction of the Court of Claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]).

. To the extent that the proposed Claim alleges violations of ADA and Rehabilitation Act, Claimant has failed to allege that he was excluded from participating in any services or that the actions taken by State employees were undertaken because of Claimant's disability (see 42 USC 12132; 29 USC 794 ). To the extent that the sixth cause of action references violations of 9 NYCRR Parts 7612 and 7651 (Prisoner Personal Hygiene and Health Services), the Court assumes that these claims apply to the first cause of action. Along these lines, except for being subjected, generally, to the terms of the Plan, the first cause of action makes no concrete allegations of heath or prisoner personal hygiene and health issues occurring after October 19, 2009 (see Claim, page 20, ¶ 124).

In addressing the second cause of action, Correction Law § 137 (3) provides that inmates are entitled to, among other things, "a sufficient quantity of wholesome and nutritious food." The State also "has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999] [internal quotation marks and citation omitted]). To maintain an action for injuries sustained due to the breach of that duty, an inmate may proceed upon the theory of medical malpractice - when the wrongful conduct is "substantially related to medical diagnosis and treatment" (Abascal v State of New York, 93 AD3d at 1217 [internal quotation marks and citations omitted]), or upon the theory of simple negligence - when the "gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [care giver's] failure in fulfilling a different duty" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [internal quotation marks and citation omitted]). "Under either theory, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is . . . required to establish that defendant's alleged negligence or deviation from an accepted standard of care caused or contributed to claimant's injuries" (Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007] [internal quotation marks and citations omitted]; but see Lipe v Albany Med. Ctr., 85 AD3d 1442, 1443 [3d Dept 2011] ["Where a jury can determine a claim based on common knowledge, it sounds in negligence, unlike a medical malpractice claim, which requires expert medical testimony to explain professional determinations"]).

Here, whether Defendant breached its duty of care, as alleged in the second proposed cause of action, implicates questions beyond the common knowledge of a fact-finder (see Weiner v Lenox Hill Hosp., 88 NY2d at 789). Assuming Claimant was allergic to the foods served to him as claimed, to establish the appearance of merit for late claim purposes, Claimant must support his motion with medical records or expert medical proof that his consumption of those food items caused or contributed to his injuries (see Matter of Robinson v State of New York, 35 AD3d 948, 949 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; see also Duffen v State of New York, 245 AD2d 653, 653 [3d Dept 1997],lv denied 91 NY2d 810 [1998]). Such a determination necessarily involves such medical steps as diagnosing Claimant's allergies, and determining what reaction, if any, each food item may or may not cause. Claimant has not addressed the appearance of merit in his submission.Nor has he provided medical records or an expert affidavit in support of his application. Thus, the Court concludes that Claimant has failed to establish that there is reasonable cause to believe that a valid cause of action exists with respect to the second cause of action.

. Claimant's unfiled reply also fails to attach medical records or expert medical proof that his consumption of certain food caused or contributed to the injuries claimed. However, Claimant attaches correspondence dated November 21, 2008, which advised that the Division of Health Services' investigation into Claimant's complaint of food allergies found his allegations to be unsubstantiated and determined that it was unclear whether his "skin and subcutaneous tissue disease" was related to food allergies (unfiled Affidavit in Support of Motion for Permission to File a Late and Amended Claim, sworn to on November 21, 2013, Exhibit 5). This correspondence emphasizes the need for medical records or expert proof to establish the appearance of merit for late Claim purposes as the issues are clearly beyond the common knowledge of a fact-finder.
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Likewise, in addressing the fourth cause of action, whether Defendant deviated from an accepted standard of care in diagnosing and treating Claimant's left arm atrophy and lump on his neck implicates questions beyond the common knowledge of a fact-finder (see Weiner v Lenox Hill Hosp., 88 NY2d at 789). Claimant has not addressed the appearance of merit in his submission. Nor has he provided medical records or an expert affidavit in support of his application. Thus, the Court concludes that Claimant has failed to establish that there is reasonable cause to believe that a valid cause of action exists with respect to the fourth cause of action.

While Claimant is not required to definitively establish the merits of his claim, he must show that there is reasonable cause to believe that a valid cause of action exists. The Court concludes that Claimant has failed to do so. Accordingly, this factor does not weigh in Claimant's favor.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), Claimant's Motion No. M-83929 is denied.

Accordingly, it is hereby

ORDERED, that Defendant's Motion No. M-84189 is granted and Claim No. 122863 is dismissed; and it is further

ORDERED, Claimant's Motion No. M-83929 is denied.

March 24, 2014

Albany, New York

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Claim [122863], filed June 18, 2013;

Answer [122863], filed June 12, 2013;

Claimant's Notice of Motion, filed August 27, 2013;

Claimant's "Motion for Permission to File a Late Claim," dated August 23, 2013, with Exhibit 1;

Affirmation of Thomas Trace, Esq., dated September 30, 2013;

Defendant's Notice of Motion seeking Dismissal of Claim No. 122863, filed October 24, 2013;

Affirmation of Thomas Trace, Esq., dated October 22, 2013, with Exhibits A-E;

Notice of Motion, unfiled, faxed to Chambers November 22, 2013, with attached Affidavit in Support of Motion for Permission to File a Late and Amended Claim, sworn to on November 21, 2013, with Exhibits 1-6;

Notice of Motion, unfiled, faxed to Chambers November 22, 2013, with attached Affidavit in Support of Motion for Permission to File an Amended Claim, sworn to on November 21, 2013, with Amended Claim;

Correspondence from the Court, dated November 27, 2013;

Correspondence from Claimant, dated February 5, 2014;

Correspondence from the Court, dated February 10, 2014.